College of Nurses of Ontario v. Marie Smith, 2017 ONCNO 49351

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Fox, NP Chairperson Spencer Dickson, RN Member Cheryl Evans, RN Member Robert MacKay Public Member Catherine Ward Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for ) College of Nurses of Ontario

• and - )

MARIE SMITH ) JANE LETTON for Reg. No. 0320226 ) Marie Smith

) Heard: March 2, 2017

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on March 2, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.

Counsel for the College advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(b), 2(b) and 3(b) of the Notice of Hearing dated November 25, 2017. The Panel granted this request. The remaining allegations against Marie Smith (the “Member”) are as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse at Holland Christian Homes – Faith Manor, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, and in particular, on or about October 4, 2014:

a. you hit and/or slapped client [the Client] and/or grabbed client [the Client] by the shoulders and/or blouse and/or shook her on one or more occasion(s);

b. [withdrawn]

2. You have committed an act of professional misconduct, as provided by subsection 51 (1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S. O. 1991, c. 32, as amended, and defined in paragraph 1(7) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse at Holland Christian Homes – Faith Manor, you abused a client verbally, physically and/or emotionally, and in particular, on or about October 4, 2014:

a. you hit and/or slapped client [the Client] and/or grabbed client [the Client] by the shoulder and/or blouse and/or shook her on one or more occasion(s);

b. [withdrawn]

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse at Holland Christian Homes – Faith Manor, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, and in particular, on or about October 4, 2014:

a. you hit and/or slapped client [the Client] and/or grabbed client [the Client] by the shoulders and/or blouse and/or shook her on one or more occasion(s);

b. [withdrawn]

Member’s Plea

The College and the Member agree there would be no admission to, nor would the facts admitted to in the Agreed Statement of Facts relate to, a hit or slap of the client, or to grabbing of the client’s shoulder. Therefore the Member admitted to the remainder of the allegations set out in paragraphs 1(a), 2(a) and 3(a) in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College and the Member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads as follows.

THE MEMBER

1. Marie Smith (the “Member”) obtained a diploma in nursing from George Brown College in 2003.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on August 27, 2003. The Member resigned from the College on October 28, 2016.

3. The Member was employed at Holland Christian Homes – Faith Manor (the “Facility”) from August 5, 2004 to October 18, 2014, when her employment was terminated as a result of the incident described below.

THE FACILITY

4. The Facility is located in Brampton, Ontario.

5. The Facility is a long-term care home that houses 120 residents. There are two secure units at the Facility, with sixty clients on each side.

6. The Member worked at the Facility as a full-time charge nurse on the day shift, from 07:00 to 15:00.

THE CLIENT

7. [The Client] was 74-years old at the time of the incident.

8. The Client was mobile and cognitively impaired. She was diagnosed with Alzheimer’s disease.

9. The Client had a loud voice and was known to exhibit aggressive behaviour, including hitting, although it did not happen regularly.

10. The Client first moved in to the Facility in May 2013 and the Member was familiar with her care plan.

FACILITY POLICIES

11. The Facility had a policy called “Standards of Employee Conduct – Abuse Policy, Reporting and Investigating Abuse, Staff/Resident, Resident/Resident, Visitor/Staff.”

12. The policy stated that the Facility has a “zero tolerance level towards abuse” and that abuse includes “a misuse of power, trust, respect or intimacy causing physical or emotional harm…” Examples of physical abuse include: “hitting, biting, scratching, pinching, kicking, pushing, slapping, shaking, using force, rough handling…”

13. The Facility also had a policy titled, “Resident Abuse & Neglect.” It set out that “[s]taff will be trained on the resident abuse policies during orientation, and annually thereafter.”

14. The Member last participated in training on client abuse on August 28, 2012. The training was conducted by the Peel Regional Police and included training on preventing, dealing with and reporting abuse.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

15. On October 4, 2014, at approximately 14:50, near the end of the Member’s shift, [Witness A], a Registered Practical Nurse (“RPN”), was at the nursing station when she heard the Client yelling loudly.

16. When she looked up, [Witness A] saw the Member holding the Client by her blouse at or near her shoulders. The Member was shaking the Client. The Client’s arms were flailing in the air towards the Member.

17. [Witness A] asked the Member to stop but the Member did not. Another resident was also trying to separate the Member from [the Client].

18. As [Witness A] ran around the nursing station, [Witness B], another RPN, and [Witness C], a Personal Support Worker, came running over. They all tried to separate the Member from the Client.

19. When [Witness A] told the Member she could not do what she did to the Client, the Member responded that the Client hit her first.

STANDARDS OF PRACTICE

20. The Therapeutic Nurse-Client Relationship is one of the College’s published standards of practice. It provides, among other things, that nurses meet the standard by intervening and reporting, when appropriate, incidents of verbal and non-verbal behaviours that demonstrate disrespect for the client, as well behaviours toward a client that may be perceived by the client and/or others to be violent, threatening or intended by the nurse to inflict physical harm.

21. The Therapeutic Nurse-Client Relationship standard defines abusive behaviours as including (but not being limited to) pushing, slapping, shaking, using force, and handling a client in a rough manner.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

22. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1(a) of the Notice of Hearing, as described in paragraphs 14 to 19 above, in that she grabbed client [the Client] by the shoulders and/or blouse and/or shook her on one or more occasions.

23. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2(a) of the Notice of Hearing, as described in paragraphs 14 to 19 above, in that she abused client [the Client] verbally, physically and/or emotionally when she grabbed client [the Client] by the shoulders and/or blouse and/or shook her on one or more occasions.

24. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3(a) of the Notice of Hearing, and in particular, her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 14 to 19 above.

Decision

The Panel considered the Agreed Statement of Facts and found that the facts support a finding of professional misconduct. In particular the Panel found that the Member committed an act of professional misconduct as alleged in paragraphs 1(a) and 2(a) of the Notice of Hearing in that she failed to meet the Therapeutic Nurse-Client Relationship standard of practice and physically abused client [the Client] when she grabbed client [the Client’s] blouse and shook her as set out in the Notice of Hearing. As to allegation 3(a), the Panel found that the Member engaged in conduct that would reasonably be considered by members of the profession as disgraceful, dishonorable and unprofessional.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the plea of the Member and found that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation 1 in the Notice of Hearing is supported by paragraphs 16, 17, 18, 19, and 20 in the Agreed Statement of Facts.

Allegation 2 in the Notice of Hearing is supported by paragraphs 16, 17,18, 19, 20, and 21 in the Agreed Statement of Facts.

The Therapeutic Nurse-Client Relationship standard of practice details conduct that would be characterized as physical abuse. The Member, by grabbing the client and shaking her repeatedly for no therapeutic reason, committed physical abuse. In this instance the Member shook the client in response to the client having hit the Member immediately prior. The Member failed to meet the standard of the profession and committed physical abuse.

With respect to allegation 3(a), the Panel found that the conduct of the Member in physically abusing the client and failing to meet the Therapeutic Nurse-Client Relationship standard of practice was unprofessional as it demonstrated a serious disregard for her professional obligations.

The parties also asked the Panel to find under allegation 3(a) that the conduct of the Member would reasonably be viewed by members of the profession as dishonourable. The Panel is well aware that the Discipline Committee at this College usually reserves the term “dishonourable” for conduct that has an element of moral failing, often involving dishonesty and deceit with an element of moral failing. While this conduct certainly displayed moral failing, the Panel did not see in the facts before us any specific admission that might clearly show deceit or dishonesty. However, as both parties asked the Panel to make that finding, the Panel found that the Member’s misconduct would reasonably be regarded by members as dishonourable.

The Panel found that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The physical abuse of the client by the Member was not a momentary event and she continued to physically abuse the client, even when colleagues attempted to intervene to stop her. Further, the Member stated to a colleague, who told her she could not do what she had done, that the client had hit her first. The Panel saw this as an attempt by the Member at that point in time to justify her physical abuse of the client. It is the Panel’s finding that the Member’s actions in this incident casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

Counsel for the College and the Member advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission requests that this Panel make an order as follows.

1. Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

Penalty Submissions

College Counsel submitted that the College would have asked for a much different penalty, but for the fact that the Member has signed an undertaking with the College (the “Undertaking”) in which she undertakes, acknowledges and agrees that, among other things:

• She will permanently resign as a member of the College;

• She will not apply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future; and

• The public portion of the Register maintained by the College will indefinitely reflect that she entered into the Undertaking to permanently resign as a member of the College as part of an agreed resolution of allegations of professional misconduct heard by a Panel of the Discipline Committee; and

• The College is authorized to and may, in its sole discretion, provide a copy of the Undertaking and/or its terms to a governing body that regulates nursing in Canada or elsewhere in response to an inquiry or otherwise.

In light of the Undertaking, College Counsel submitted that the proposed penalty order supported general deterrence, protection of the public interest and maintained public confidence in the ability of the nursing profession to self-regulate.

The Member has entered into a rigorous Undertaking to resign her membership with the College and to not pursue registration in the future. As well, the Undertaking includes provision for the College to inform regulators in other jurisdictions should the Member attempt to gain registration in those areas. This outcome should inspire public confidence in the profession’s ability to regulate members, as the Undertaking was given within the context of an admission by the Member and an entry on the public record as opposed to a simple resignation from the College. Specific deterrence and rehabilitation are not essential components of the penalty to be ordered by the Panel as the Member has permanently resigned from the profession.

Counsel for the Member stated that in addition to College Counsel’s comments she would note that the Member understands the need for an oral reprimand as a part of the penalty process.

Counsel submitted cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.

• Two cases show the kind of penalty the Member might have expected had she not given the Undertaking. CNO v. Pottruff (Discipline Committee, 2006) involved an incident of physical abuse of a client. The resulting penalty was an oral reprimand, a two month suspension, as well as terms conditions and limitations on the member’s registration. Similarly, CNO v. Walton (Discipline Committee, 2008) involved an incident of physical abuse involving grabbing a client. The resulting penalty was an oral reprimand, a six week suspension, and terms, conditions and limitations on the member’s registration.

• Two other cases show that panels of this Discipline Committee have accepted differently-structured penalties when a member gives a permanent undertaking to resign. In CNO v. Wood (Discipline Committee, 2012) the panel found a failure to maintain a therapeutic nurse-client relationship. The resulting penalty was an oral reprimand and the member also entered into an undertaking with the College to resign his membership with the College. CNO v. Eno (Discipline Committee, 2016) also involved a nurse’s failure to maintain therapeutic boundaries. The resulting penalty was an oral reprimand and the member also entered into an undertaking with the College to resign her membership with the College.

Penalty Decision

The Panel accepted the Joint Submission on Order and accordingly ordered:

1. The Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and the proposed penalty, has accepted responsibility. The Panel found that the penalty satisfies the principles of general deterrence, rehabilitation and public protection. As a matter of practicality, the Member has chosen to no longer be a part of the profession and while the Member has resigned her membership with the College, public protection is further supported in that the College will publish the findings from this process and retain the ability to notify regulators in other jurisdictions should the Member seek registration there. The publication of the findings and the oral reprimand will also serve as a general deterrence to the profession demonstrating that such misconduct will not be tolerated. The Panel acknowledges that this penalty does not address specific deterrence or remediation, however the Panel does not identify any need for these aspects in this instance considering that the Member has permanently resigned from the profession.

The penalty is in line with what has been ordered in previous cases.

I, Grace Fox, NP, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline panel.

Chairperson Date